论文部分内容阅读
在德国,假设承诺是最近十年才出现在联邦法院判例中的新事物。它指的是:在医事手术上,如果医生向病人作了如实的说明,病人也会作出承诺,那医生的说明瑕疵不会使得其医事手术失去正当性。相对于事实的承诺和推定承诺,假设承诺没有弱化当事人的自决权。由于病人同意手术的决策以及相应的手术侵犯,并非确切地由说明瑕疵所导致,所以它们两者之间不存在义务违反性的关联,进而缺乏可归属性。即使医生采取了合乎义务的替代性举止,结果发生的概率也同样会达到相当确定的程度。此外,依照“有疑问时,有利于被告人”的原则,亦可得出有利于医生的结论。在德国民事判例上,当事医生毋需为其说明瑕疵承担责任,基于统一法秩序的原理,医生也不应承担刑事责任(除非构成未遂)。
In Germany, it is assumed that the promise was something new in federal court cases in the last decade. It refers to the following: In medical surgery, if the doctor makes a true statement to the patient, the patient will make a promise that the doctor’s flaw does not invalidate the medical operation. In contrast to the factual promise and the presumption of commitment, it is assumed that the promise did not weaken the parties’ right to self-determination. Due to the patient’s decision to consent to the operation and the corresponding surgical violation, which are not exactly caused by the description of the defect, there is no obligation violation relationship between the two and thus the lack of attribution. Even if the doctor takes an alternative and substitutable act, the probability of the result will also be fairly certain. In addition, in accordance with the principle that “in the case of doubt, it is in the interest of the defendant”, conclusions that are in the interest of the doctor can also be drawn. In German civil jurisprudence, the practitioner need not be held accountable for its flaws, and doctors should not be held criminally responsible (on an attempted basis) on the principle of a uniform legal order.